Previously on this Web site, I discussed
changes in witnessing requirements for advance directives under the revised
law, Texas Senate Bill 1260, which will take effect on September 1 ( Death/990706New.html
). This bill consolidates all the previous Texas statutes related to advance
directives--including the Natural Death Act, Durable Power of Attorney for Health
Care, and Out-of-Hospital DNR Orders--into a unified statutory form. The new
law contains a distinctive provision that may alter the balance of power between
physicians and patients on issues related to end-of-life treatment decisions--an
authorization of disciplinary action against health professionals who fail to
effectuate a directive.

Subchapter B of the new law,
Directive to Physicians, provides "a physician, or a health professional
acting under the direction of a physician, is subject to review and disciplinary
action by the appropriate licensing board for failing to effectuate a qualified
patient's directive in violation of this subchapter or other laws of this
state" [Texas Health & Safety Code § 166.045 (b) (effective 9-1-99)].
A similar provision is contained in Subchapter C regarding out-of-hospital
DNR orders [Texas Health & Safety Code § 166.095 (b)], but not
in Subchapter D covering medical powers of attorney.

There have been reported
cases of physicians refusing to honor advance directives. Physicians have
disregarded directives for a variety of reasons, including disagreement
with the patient's decision and pressure from family members. Most advance
directive laws across the U.S. (including the previous Texas law) provide
only negligible financial penalties for failure to honor directives, and
even these provisions are rarely, if ever, enforced. Presumably, the new
Texas statutory provision is designed to put some "teeth" into the new
law by providing additional remedies for patients or families to pursue.
It could be argued that the threat of a patient or family complaint to
a professional board, with the corresponding risk of disciplinary action
or revocation of a license to practice, might ensure better compliance
of health care providers with patients' expressed preferences. This statutory
provision parallels a recent development in Oregon where the board of medical
examiners considered action against a physician for undertreatment of pain
by failing to prescribe adequate amounts of opioid pain relievers. These
trends suggest that board action may be increasingly used against doctors
for omissions as well as acts.

The possibility of greater
enforcement authority for advance directives may be interpreted by some
persons as a positive development because it may empower patients and enable
them better to achieve their desired medical goals. However, the possibility
of unintended consequences may be high in this case since it is not known
how the medical community may react to these statutory provisions. Further,
the inconsistency in the new statute--the absence of a parallel provision
in the subchapter on powers of attorney--may cause other problems, e.g.,
physicians might be more eager to comply with directives than powers of
attorney. This could prove to be unfortunate because many bioethicists
consider powers of attorney to be more helpful in difficult decisions than
explicit directives. Since the Texas law is not yet in force it remains
to be seen what its effect will be on physician compliance with advance
directives of all sorts, as well as relationships between individual physicians
and patients.